Why Did Congress Abdicate Its Power To Make Copyright Policy?

from the this-is-broken dept

Earlier today, we wrote about today's Congressional hearings about legalizing the unlocking of mobile phones. That post fretted about the unwillingness of Congress to take on the actual issue. The only reason that mobile phone unlocking is illegal today is because of a broken copyright law, specifically section 1201 of the DMCA, which isn't about copyright per se, but rather a bizarre, indirect way that entertainment industry lawyers think protects copyright by making technology illegal, and effectively gives those legacy industries veto power over technologies they don't like. So when Congress realizes how this is abused for reasons that have nothing to do with protecting copyrights, they should respond by fixing section 1201. But that's not what they're doing.

What I hadn't seen when I wrote the earlier post is the way in which the IP subcommittee of the House Judiciary Committee framed the hearing today. However, the official memo from the committee outlining the hearing is actually an incredible statement, in which the committee basically claims (falsely!) that Congress does not have the power to fix section 1201! How could that be? They claim that our "international obligations" forbid this. Specifically, they point to the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty as binding their hands in fixing 1201.

The WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty require countries that have acceded to the Treaties to “provide adequate legal protection and effective legal remedies against the circumvention of effective technological measures.”1 Enacted in 1998 as part of the Digital Millennium Copyright Act, Section 1201 (a)(1) of Title 17 implements these treaty obligations in the U.S. by prohibiting circumvention of a technological protection measure (TPM) that effectively controls access to a copyrighted work subject to one key exception. Every three years, the Register of Copyrights is directed by statute to conduct a rulemaking in which advocates for specific exemptions may petition for exemptions to the anticircumvention provisions for noninfringing uses subject to five factors.

Since the enactment of this provision into U.S. law, the U.S. has entered into several Free Trade Agreements that require signatories (the U.S. and the particular country or region) to enact anti-circumvention provisions and set requirements on how exceptions to them can be created. Most such FTAs limit the duration of such exemptions to a three or four year period and require that they be administratively or legislatively created based upon a record of evidence.

If you're even remotely aware of the history of the DMCA and the WIPO Copyright Treaty, you would know that this is first, an incredible rewriting of history, and second, a ridiculous and false direct claim from Congress that it has abdicated its sole authority in establishing copyright policy to the administration.

First, a bit of history: In the early/mid 90s, the entertainment industry, fearing new internet technology, sought to pass the DMCA, with a specific focus on anti-circumvention rules, in the mistaken belief that strong DRM would protect their increasingly obsolete business models. However, Congress wouldn't pass such a law. So what did they do? They went to Geneva, and used the "international trade" venue to create a treaty that would then require the US to pass the DMCA if it wanted to sign onto the treaty. The key architect of the DMCA and this entire plan, Bruce Lehman, has admitted outright that he went to Geneva as a direct "end run around Congress" because they wouldn't pass the law the entertainment industry interests wanted. Just a few months ago, at a 15-year anniversary conference for the DMCA, Lehman had no problem directly admitting that he absolutely went to Geneva to deal with Congress' failure to pass the law.

Now, we've pointed out that really fixing phone unlocking would likely violate international agreements. But, the point should really be that Congress should re-assess its sole authority over copyright policy. The Constitution gives Congress the power to set copyright policy, not the administration, which negotiates treaties. So it's not even clear if the USTR (a part of the administration) has the power to negotiate international copyright policy. But it's crazy to then think that this stops Congress from fixing a broken system.

To have Congress itself say that it can't fix a clearly broken system, because of trade agreements that it did not negotiate or set is an incredible admission. It's fundamentally incorrect. Congress alone has the power to set copyright policy, and if that "violates" international agreements, that's a problem for the administration, not Congress.

However, the fact that Congress is now claiming that it has given up its power, and clearly admits that it feels its hands are tied in actually fixing a very real problem that so many people are concerned about, because a few representatives of the Clinton administration, who have admitted directly that they were creating policy by routing around Congress to support their friends in the entertainment industry, should give everyone -- especially in Congress -- serious pause about supporting things like "intellectual property chapters" in new international agreements like the TPP and TAFTA.

Both of those agreements will be setting significant aspects of copyright (and patent and trademark) policy -- without any input from the public, because they're being negotiated entirely in secret. However, the entertainment industry has full access to the documents. And here we have Congress saying -- incorrectly -- that whatever comes out of that process will bind their hands.

That's crazy.

Whether or not you think Congress should be taking on mobile phone unlocking or copyright reform or anything along those lines, I would hope that most people can agree that there's something wrong about a process in which corporate interests get to drive US policy in international agreements without any transparency or feedback from the public, and then Congress claims it can't fix the problems that those agreements create.